On SCOTUS v. POTUS, siding with Obama

Mark Salter Contributor
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In the controversy-mongering that ensues after every State of the Union address, there’s usually one or two examples that are so contrived and inane, the only sensible response is mockery.

This year, the one that most deserves ridicule is the mortification some starched collars seem to have suffered because the president objected in his address to the Supreme Court’s landmark ruling in Citizens United v. Federal Election Commission, a decision that overturned a McCain-Feingold provision preventing corporations and business unions from running their own campaigns for or against candidates for public office, and by implication could possibly undermine a century-old law forbidding direct contributions to candidates from corporations and unions.

The president’s criticism of the decision apparently offended Associate Justice Samuel Alito, who was seen shaking his head and whispering, “That’s not true.” Not as vigorous a reaction as Rep. Joe Wilson’s impulsive “You lie!” during last year’s address. But still, it was a little more animation than one normally sees from the stony-faced justices as they stoically endure the backside pains induced by the annual exhaustive and exhausting political theater of a State of the Union.

In the matter of Obama v. Alito, I side with the president. I agree with him on the merits of the argument, but that’s beside the point. What I take issue with here is the ludicrous idea that it is somehow a breach of decorum for a president to dispute publicly a Supreme Court ruling. Why?

Is the occasion too august for such dissension? Hardly. It typically features robust cheering and jeering from the Congressional audience. One side jumps up and squeals their affection for the president every time he clears his throat. Many of them arrive hours earlier to claim an aisle seat in the hope the cameras might catch them grasping at a presidential garment as it trails by them on its way to the podium, behaving like tweens at a Jonas Brothers concert. And the other side plays the part of their dyspeptic parents, their features arranged in frozen looks of disapproval.

The press gobble it up, of course. Breathlessly counting the number of ovations; panning cameras to frowning members of the opposition; gasping with glee at every excited or feigned reaction. On the whole, it really isn’t that dignified an occasion, is it?

Is there a Washington custom that presidents cannot voice their disagreement with the Supreme Court in a State of the Union? Or is the prohibition broader? Should they refrain from doing so whenever a Justice might be within earshot of the remark? When they’re speaking on television in primetime? Exactly what is the custom, and when did it become one?

The court was surely aware of the president’s views. The government’s lawyers argued them before the court, and the justices who voted to overturn the law, didn’t have any scruples about assailing the president’s views during oral arguments. Should the president have been offended?

I’m pro-life and like other pro-lifers, I take strong exception to the court’s decision in Roe v. Wade. I’d be quite pleased were a President to criticize it in a State of the Union address. And if one of the justices who had sided with the majority in the case immediately signaled his disagreement with my argument, I think I could manage to take it in stride.

Some commentators have suggested the president had so abused the court’s dignity that the justices would probably decline to attend next year’s address. Well, the poor dears. Having rendered a decision that has significant political repercussions, they are so wounded by a politician who faults them for it they can’t risk the experience again. I doubt it. Associate Justice Scalia really doesn’t strike me as the type who possesses such tender sensibilities he must take to his bed with a cup of broth rather than endure a single assault on his reasoning. If some of the justices don’t show up next year it will be because Washington has finally given them an excuse to avoid the entire, silly, breathlessly anticipated, feverishly reported, and agonizingly long spectacle.

And on that score, I’m with them.

Mark Salter is the former Chief of Staff to Senator John McCain, senior adviser to his presidential campaign, and co-author of his five books.